Kulat & Azzarudin (No 2)

In *Kulat & Azzarudin (No 2)*, the Supreme Court of Victoria was asked to determine whether a party, who had been successful in a proceeding, was entitled to recover the costs of an expert witness report that had been obtained but not relied upon at trial. The dispute arose after the plaintiff, Kulat, had been awarded damages against the defendant, Azzarudin, but the parties could not agree on the extent of the costs to be recovered. Specifically, the plaintiff sought to recover the full cost of an expert report that was prepared but ultimately not used during the hearing.

The central legal issue before the Court was whether the costs associated with an expert report, which was not tendered or referred to in evidence, could be considered "reasonably incurred" for the purposes of a costs order. The Court had to consider the principles governing the recovery of costs, particularly in relation to expert evidence, and the discretion of the court to award costs that are considered reasonable.

Carew J held that the costs of an expert report that was not used at trial were not recoverable. His Honour reasoned that for costs to be considered reasonably incurred, the expert evidence must have been necessary or helpful to the party's case and ultimately used in advancing that case. In this instance, as the report was not relied upon, it could not be said to have been reasonably incurred in the prosecution or defence of the proceedings. The Court therefore found that the plaintiff was not entitled to recover the costs of the unused expert report.